With these simple, pro-forma words, a national emergency was declared on Friday, February 15, to fund President Trump’s most important pet project, a wall (or should it be called a “barrier?”) along the southwestern U.S.-Mexico border: “NOW, THEREFORE, I, DONALD J. TRUMP, by the authority vested in me by the Constitution and the laws of the United States of America…hereby declare that a national emergency exists at the southern border of the United States.” Enter another political bombshell into the Washington, D.C., maelstrom — one certain to end up on the dockets of the black-robed justices of the Supreme Court.
With this emergency declaration, Trump will have the power to tap billions of dollars in the Pentagon budget ordinarily off-limits without congressional approval: $600 million will be taken from the Treasury Department’s forfeiture funds account, $2.5 billion will be swiped from the Pentagon’s counter-drug programs, and $3.6 billion will be re-appropriated from military construction projects. In addition to the roughly $1.3 billion in the latest government funding bill, Trump will have a total of $8 billion at his disposal to expand physical border barriers west of the Rio Grande.
More interesting than where the money is coming from and how the inevitable lawsuits will turn out is the irony of this entire affair. By a single stroke of his pen, Trump managed to shock lawmakers out of their coma with respect to emergency powers. It’s as if Congress suddenly discovered that it actually possessed the ability to block a president from exercising the extensive authorities granted to him during a national emergency.
The National Emergencies Act is one of those laws presidents have used to increase their power during extraordinary circumstances. Except extraordinary has now become ordinary. The Brennan Center of Justice has documented 59 national emergencies (Trump’s border emergency will be the 60th) in the 42 years the NEA has been in effect. Not including Trump’s recent declaration, 32 of those 59 emergencies are still germane. The only time a national emergency has been declared over was when a president no longer found them to be useful. It’s perfectly understandable if one believed that Congress has no say in the matter at all.
This, however, couldn’t be further from the truth. Congress is actually given tremendous power under the NEA, including the ability to end a national emergency the president invokes. In fact, Congress is supposed to meet every six months to review an emergency and determine whether a vote to terminate it is appropriate. Not once has Congress done what the law requires it to do. Not once has Congress met to review an emergency on the books, let alone voted to kill one.
This nauseating history may now come to an end thanks to Trump. Congressional Democrats are already drafting a resolution of disapproval to put on the House floor. Given the Democratic majority in the House, the resolution would most definitely pass if it’s introduced. There seem to be enough Senate Republicans nervous about the precedent Trump’s declaration would set for the willingness of future presidents to levy emergency authority that it could even pass the upper chamber.
Trump would veto any resolution of disapproval that comes to his desk, and his veto would likely be sustained courtesy of loyal Senate Republicans. But the bigger point stands: lawmakers, after four decades of sitting in the peanut gallery and twiddling their thumbs, will actually go through the trouble of following a law Congress itself passed.
Democrats will be reluctant to admit it, but Trump will deserve a big share of the credit for getting the legislative branch to do the job its members were elected to do: abide by the law. That would be no small accomplishment in an era when budgets are late, the government is constantly at risk of shutting down, committee hearings are exercises in partisan warfare, and Senate confirmations languish.
Daniel DePetris (@DanDePetris) is a contributor to the Washington Examiner’s Beltway Confidential blog. His opinions are his own.